A friend who is working as an associate at the powerhouse law firm of Williams & Connolly tells me that a petition for certiorari was filed this past week in Catholic Charities of Sacramento v. California. (Unfortunately, I do not yet have a link for the petition.) The petition is a top-notch piece of work. The "question presented" is as follows: "Whether the State may may compel an organ of the Catholic Church, contrary to its religious teachings, to include contraceptives in the prescription drug plan it provides to its employees, and thereby to finance conduct that the Church teaches is sinful."

The petition proposes three "reasons for granting the petition": First, the petition asks the Court to "clarify the scope" of the Smith decision, noting that -- among other things -- the law at issue in the case was not, in fact, "generally applicable" (because both the law itself, and the narrow "religious employer" exemption, were designed to guarantee that Catholic institutions in particular would be subject to contraception-funding mandate). Second, the petition asks the Court to address the question whether the government has an interest -- let alone a "compelling" one -- in "forcing" a religious institution to subsidize conduct that it holds to be sinful. Third, the petition addresses the question whether there are limits -- and what they might be -- on the ability of the State to decide whether a "church entity is sufficienty religious to exercise its religion freely."

Although the petition for certiorari is excellent, I am not confident that the Court will agree to hear this case. That said, as I mentioned in a short op-ed a few months ago (link), I believe that the California Supreme Court's decision is on the front lines of the struggle for authentic religious freedom. I will post a link to the petition for certiorari as soon as one is available.

Pope John Paul II's words to the bishops Indianapolis, Chicago, and Milwaukee during their ad limina visit today provides a major challenge for the bishops, religious, and committed lay Catholics (including law professors): "An effective proclamation of the Gospel in contemporary Western society will need to confront directly the widespread spirit of agnosticism and relativism which has cast doubt on reason's ability to know the truth, which alone satisfies the human heart's restless quest for meaning." Rob's post illustrates how much work lies ahead.

I'm generally a proponent of a "marketplace of ideas" approach when it comes to the moral shaping of a secular, pluralist society. That is, we should hesitate before bringing the trump of state power to bear on contested visions of the good, instead encouraging, by word and example, our fellow citizens to cultivate moral virtues. This approach presumes, however, that modern Americans are open to outside moral influence. I'm wondering if that even holds true for Catholics anymore. A just-released survey shows that 66 percent of American Catholics say the bishops should not publicly pressure Catholic lawmakers on the abortion issue, and a whopping 87 percent say the bishops' comments on abortion would have no influence on their ultimate voting decision. (When non-Catholics are included, the latter response falls to 85%, so I guess the bishops carry more authority among non-Catholics these days!)

From teaching ethics to law students, I know that the sin of all sins today is to purport to sit in judgment of someone else, so I could have guessed that the poll numbers would be trending in the direction of our unique brand of American hyper-individualism on all things moral, but the numbers themselves are still surprising.

This probably comes as no surprise, but Americans United for Separation of Church and State (formerly known as "Protestants and Other Americans . . . ") has asked the I.R.S. to investigate the remarks of Bishop Sheridan of Colorado Springs, and to re-consider the relevant Diocese's tax-exempt status. Here is AU's press release.

Wholly and apart from the question whether Bishop Sheridan went too far, in terms of Catholic teaching, when he suggested that Catholic voters who vote for pro-abortion-rights candidates should abstain from communion (I'm inclined to think that Bishop Sheridan *did* go too far), it is unsettling to me both that (a) instructing Catholics as to (what he sees as) their obligations as Catholics could get the Bishop into financial trouble and (b) that, evidently (see the press release), the USCCB instructs bishops and other Church officials to modify or construct their public discussion of moral questions in accord with IRS regulations.

Perhaps this is naive, but I would hope that bishops would be guided, as they consider whether and how they should speak out on issues of public import and moral teaching, not by Revenue Rulings and the tax regulations, but by their best understanding of the faith, prudence, and pastoral wisdom. For bishops, the argument against statements like Bishop Sheridan's and Bishop Burke's should not be "these statements endanger our tax-exempt status" but "are we serving as good pastors and teachers?"

Rick

UPDATE: A Notre Dame law student suggests -- fairly, I think -- that I was too hasty (above) in criticizing the USCCB for advising dioceses to take care not to act in ways that endanger the tax exemption. She makes many good points. Still, there could come a point when the price is too high.

I'm happy to announce that several new members have joined our blog group: Patrick Brennan (Arizona State), Richard Meyers (Ave Maria), Michael Perry (Emory) and Lucia Silecchia (Catholic). They present a wide variety of viewpoints on Catholic/legal matters, and I am sure that they will enrich our discussion. Links to their bios and papers will be posted shortly, and they will begin blogging shortly.

For those interested in subsidiarity, I have just posted in the sidebar an article I wrote at the outset of the Bush Administration titled Subsidiarity as a Principle of Governance: Beyond Devolution. The article arose out of my discomfort with the frequent and (in my view) one-dimensional invocation of subsidiarity by purveyors of "compassionate conservatism." I argued that subsidiarity's call for local bodies to take primary responsibilty for social problems presumes that such bodies will be equipped with the necessary resources, financial and otherwise, to carry out their responsibilities effectively, and that higher bodies, especially the federal government, will need to play a significant role not only in the process of empowerment, but will bear ongoing responsibility in those areas where the necessary empowerment is impractical. In several policy areas, I identified a disconnect between subsidiarity's premise and the Bush Administration's reflexively devolutionary stance toward government power. Certainly the landscape of government power, including the power sought and wielded by the Bush Administration, has changed remarkably since 9/11, but the basic thrust of the article remains valid, in my estimation.

Perhaps as a signal of its support for a new constitutional right of "sacramental access," the New York Times has suddenly become very protective of the right to receive communion. In an editorial, the Times cautions that "things get sticky fast when religious leaders try to dictate public policy to their church members who hold elective office." Unintentionally, the editorial underscores how the emerging secularist take on the recent spate of bishops' pronouncements is more dangerous than even a skeptical reading of the pronouncements themselves.

After making the obvious point that certain bishops could be criticized for not paying more attention to Catholic office-holders' positions on the death penalty or the war in Iraq, the Times dramatically expands the criticism, supporting the notion that the Vatican lacks the moral standing to condemn the Iraqi prisoner abuse scandal because of its own problems with clergy sexual abuse. Indeed, the Times implies that this democracy thing would be a whole lot easier if the Church would just keep to itself, or at least speak in a non-binding, consent-inviting way. In the Times' view, "any attempt to make elected leaders toe a doctrinal line when it comes to their public duties" is problematic.

Apparently, then, there is no doctrine of sufficient significance to warrant the Church exercising its religious authority over its members once they enter the public square. Support abortion? Fine. Support euthanasia? Fine. Support genocide? Fine. What we're left with is a Church consisting only of loosely affiliated individuals, with no communal identity apart from members' ongoing, voluntary decisions to submit themselves to the Church's teachings. Pope Paul VI's caution in Gaudium et Spes looms large, as he warned against contenting ourselves "with a merely individualistic morality." Certainly some of the bishops' statements are properly subject to criticism, but we should also keep in mind where that criticism seeks to take us. If the bishops are to censor themselves from speaking authoritative truth to those in the Church who wield public power, the Church's authority will be of the thinnest sort, and the relentless march of individualism will have made significant inroads into our most fundamental conceptions of religious community.

Victoria Reggie Kennedy (who is Senator Kennedy's wife), in an editorial piece published in Sunday's Washington Post, writes the following, in defense of pro-abortion-rights Catholic politicians and citizens:

"Pro-choice politicians -- or pro-choice citizens, for that matter -- do not support legislation to require or even encourage women to have abortions; they simply refuse to make abortion a crime punishable under non-church law. The pro-choice position recognizes that the United States is a diverse, pluralistic society where a woman has the constitutional right to make a decision based upon her own conscience, religious beliefs and medical needs. Would those who are trying to force non-Catholics by law to follow the teachings of the Catholic Church be willing to accept the governmental imposition of the laws of another faith on them?"

I'd like to put aside the specific controversies (which Ms. Kennedy was addressing) of (a) denying communion to pro-choice politicians and (b) urging Catholics not to vote for pro-choice politicians. Instead, I'd like to focus briefly on what appears to be Ms. Kennedy's (Dworkinian?) premise that laws restricting abortion, in effect, "force non-Catholics by law to follow the teachings of the Catholic Church."

Now, as many contemporary and traditional Catholic writers have reminded us, a just society need not prohibit every vice. Catholic citizens and politicians are certainly not required to insist that all wrongs and sins be criminalized -- indeed, this Catholic citizen would not want to live in a polity that did so insist. And, I suspect we all agree that it would be unjust to "force non-Catholics by law" to, say, abstain from meat on Good Friday, or affirm the divinity of Christ.

That said, I would think that Catholic citizens and politicians -- like all citizens and politicians are (if possible) required to support, and seek the enactment of, just laws, and to oppose and seek the repeal of unjust laws. That is, while it would be wrong for Catholics in public life to seek to "force non-Catholics by law to follow the teachings of the Catholic Church," it is hard to see why it is wrong for Catholics in public life to seek to require themselves and their fellow citizens to enact and live under just laws.

A law that removes a class of persons -- here, unborn children -- from the protection of otherwise-generally-applicable homicide laws is, in my view, an unjust law. Even if we resign ourselves to the impossibility of consensus on the question whether "personhood" begins at conception, or later, it is not clear to me that pegging the requirements of justice to a claim that "personhood" inheres in every human being from conception, or very shortly thereafter, is "forcing non-Catholics to follow the teachings of the Catholic Church". What pro-choice politicians and citizens are doing wrong, then, is not failing to impose Catholicism on their fellow citizens, but failing to pursue and promote justice in the political realm.

Ms. Kennedy is mistaken, then, to frame the message of some Catholic bishops -- i.e., that Catholics in public life need to be pro-life -- as an instance of "singl[ing] out an elected official who allows a woman -- and not the government -- to make a private decision." The target of pro-life political activism is not so much "private decisions" as it is the very public decision to deny to some human beings legal protections against lethal violence.

Ms. Kennedy is, as a general matter, right to observe -- quoting the Second Vatican Council -- that we "must recognize the legitimacy of different opinions with regard to temporal solutions, and respect citizens, who, even as a group, defend their points of view by honest methods." (Catholics can certainly disagree about whether the common good is better served by, for example, raising or lowering the interest rate; or by legalizing or criminalizing drug use). However, she is mistaken, in my judgment, in framing the abortion question in terms of "private decisions" and "different opinions with regard to temporal solutions." Abortion, it seems to me, is appropriately regarded by Catholics as an issue of basic justice.

Again -- these thoughts are not directed at the question whether Catholics "may vote for Kerry" or "may vote for Bush." I'm only expressing doubts about Ms. Kennedy's way of framing what is at stake.

The Notre Dame Journal of Law, Ethics, and Public Policy is accepting submissions for its 2004-05 symposia, on "Media Ethics" and "Liberty and Security." Larry Solum has posted a detailed "call for papers" here.

Vince's, Paolo's, and my friend and former colleague, Professor Steve Smith, has a wonderful essay in the latest issue of First Things, "Conciliating Hatred" (available here). Read it!

In a nutshell, Smith proposes that the present Court's maddening performances in hot-button constitutional-"law" cases can be explained by a well-meaning, if misguided, desire to mediate, resolve, and soothe national differences and divisions. At the same time, though, as Smith explains, the Justices are increasingly and in many contexts employing a jurisprudence of "evil motives" to resolve political (masking or framed as constitutional) disagreements. In other words, and strangely enough, the Court pursues its civil-peace-making ambitions by labelling those whose views it rejects as fearful, bigoted, driven by "animus," etc.

Put differently: "'Shut up,' the Court explains. 'Don't you know we are one Nation, indivisible?'"

Rick

UPDATE: University of San Diego Law Professor Maimon Schwarzschild has these thoughts regarding Smith's essay, over at The Right Coast blog.